311 in the President.a The President is to nominate, and, by and with the advice and consent of the Senate, to appoint "judges of the Supreme Court, and all other officers whose appointments are not therein otherwise provided for, and which shall be established by law. But congress may, by law, vest the appointment of such inferior officers as they think proper, in the President alone, in the courts of law, or in the heads of departments." It has never been judicially settled, but it has been very authoritatively and very wisely settled by the uniform practice of the government, that the judges of the district courts are not inferior officers, whose appointments might be withdrawn by law from the President and Senate, and placed in other hands. dependence. The advantages of the mode of appointment of public offi- Judicial incers by the President and Senate, have been already considered. This mode is peculiarly fit and proper in respect to the judiciary department. The just and vigorous investigation and punishment of every species of fraud and violence, and the exercise of the power of compelling every man to the punctual performance of his contracts, are grave duties, not of the most popular character, though the faithful discharge of them will certainly command the calm approbation of the judicious observer. The fittest men would probably have too much reservedness of manners, and severity of morals, to secure an election resting on universal suffrage. Nor can the mode of appointment by a large deliberative assembly, be entitled to unqualified approbation. There are too many occasions, and too much temptation for intrigue, party prejudice and local interest, to permit such a body of men to act, in respect to such appointments, with a sufficiently single and steady regard for the general welfare. *In an- *292 cient Rome, the prætor was annually chosen by the people, but it was in the comitia by centuries, and the choice was confined to persons belonging to the patrician order, until the close of the fourth century of the city, when the office was rendered accessible to the plebeians; and when they became licentious, says Montesquieu, the office became corrupt. a Story's Comm. vol. iii. pp. 449-456. b Const. art. 2. sec. 2. C Esprit de Loix, liv. viii. c. 12. The popular elections did very well, as he observes, so long as the people were free, and magnanimous, and virtuous, and the public was without corruption. But all plans of government which suppose the people will always act with wisdom and integrity, are plainly Utopian, and contrary to uniform experience. Government must be framed for man as he is, and not for man as he would be if he were free from vice. Without referring to those cases in our own country, where judges have been annually elected by a popular assembly, we may take the less invidious case of Sweden. During the diets which preceded the revolution in 1772, the states of the kingdom sometimes appointed commissioners to act as judges. The strongest party, says Catteau,a prevailed in the trials that came before them, and persons condemned by one tribunal were acquitted by another. b By the Constitution of the United States, "the judges, both of the supreme and inferior courts, are to hold their offices during good behaviour; and they are, at stated times, to receive for their services a compensation, which shall not be diminished during their continuance in office." The tenure of the office, by rendering the judges independent, both of the government and people, is admirably fitted to produce the free exercise of judgment in the discharge of their trust. This principle, which has been the subject of so much deserved eulogy, was derived from the English constitution.c The English judges anciently held their seats at the *293 pleasure of the king, and so does the lord chancellor to this day. It is easy to perceive what a dangerous influence this must have given to the king in the administration ■ View of Sweden, c. 8. b Art. 3. sec. 1. • The high judicial officer in the ancient kingdom of Aragon, called the Justicia, and appointed by the king, having repeatedly and boldly protected private individuals from the persecutions of the crown, was, in more than one instance, removed from office at the instance of the king. To guard against the like prostration of the independent discharge of duty, it was provided, by a statute of Alfonso V., in 1442, that the justice should continue in office during life, removable only on sufficient cause by the king and the cortes united. Prescott's Hist. of Ferdinand and Isabella, vol. i. Int. p. 108. This was the most ancient precedent in favour of the establishment of an independent judiciary, and it did great credit to the wisdom and spirit of the free states of Aragon. of justice, in cases where the claims or pretensions of the crown were brought to bear upon the rights of a private individual. But, in the time of Lord Coke,a the barons of the exchequer were created during good behaviour, and so ran the commissions of the common law judges at the restoration of Charles II. It was still, however, at the pleasure of the crown, to prescribe the form of the commission, until the act of settlement of 12 and 13 Wm. III., c. 2, which was in the nature of a fundamental charter, imposing further limitations upon the crown, and adding fresh securities to the Protestant succession, and the rights and liberties of the subject. It established that the commissions of the judges be made quamdiu se bene gesserint, though they were still to be removable upon the address of both houses of parliament. The excellence of this provision has recommended the adoption of it by other nations of Europe. It was incorporated into one of the modern reforms of the constitution of Sweden,d and it was an article in the French constitution of 1791, and in the French constitution of 1795, and it was inserted in the constitutional charter of Louis XVIII. The same stable tenure of the judges was contained in a provision in the Dutch constitution of 1814, and it is a principle which likewise prevails in most of our state constitutions, and, in some of them, under modifications more or less extensive and injurious. In monarchical governments, the independence of *294 the *judiciary is essential to guard the rights of the subject from the injustice of the crown; but in republics it is equally salutary, in protecting the constitution and laws from the encroachments and the tyranny of faction. 4 Inst. 117. b 1 Sid. 2. Charles L, in his message to parliament, July 5th, 1641, informing them of having signed the bill for abolishing the high commission court and the star chamber, added also, that he had granted that the judges should thereafter hold their places quamdiu se bene gesserint. Hume, in his Hist. of England, vol. vi. 423, says, that this grant of the judges' patents during good behaviour, was made at the request of the parliament. • The English judges, notwithstanding the form of their commissions, continued to consider that the demise of the crown vacated their seats. But this imperfection, if one really existed, was removed by the statute of 1 Geo. III., enacted at the recommendation of the king. Catteau's View of Sweden, c. 5. Laws, however wholesome or necessary, are frequently the object of temporary aversion, and sometimes of popular resistance. It is requisite that the courts of justice should be able, at all times, to present a determined countenance against all licentious acts; and to deal impartially and truly, according to law, between suitors of every description, whether the cause, the question or the party, be popular or unpopular. To give them the courage and the firmness to do it, the judges ought to be confident of the security of their salaries and station. Nor is an independent judiciary less useful as a check upon the legislative power, which is sometimes disposed, from the force of party, or the temptations of interest, to make a sacrifice of constitutional rights; and it is a wise and necessary principle of our government, as will be shown hereafter in the course of these lectures, that legislative acts are subject to the severe scrutiny and impartial interpretation of the courts of justice, who are bound to regard the constitution as the paramount law, and the highest evidence of the will of the people.a The provision for the permanent support of the judges is well calculated, in addition to the tenure of their office, to give them the requisite independence. It tends also to secure a succession of learned men on the bench, who, in consequence of a certain undiminished support, are enabled and induced to quit the lucrative pursuits of private business for the duties of that important station. The constitution of the United States, on this subject, was an improvement upon all our previously existing constitutions. By the English act of settlement of 12 and 13 William III., it was declared that the salaries of the judges should be ascertained and established; but by the statute of 1 Geo. III., the salaries of the judges were absolutely secured to them during the continuance of their commissions. The constitution of Massachusetts followed the declaration in the English statute of William, and • The protection of law and liberty from the encroachments of the sovereign, was an avowed purpose of the institution of the Justicia in the Aragonese constitution, ne quid autem damni detrimentive leges aut libertates nostræ patiantur, judex quidam medius adesto ad quem a rege provocare, si aliquem læserit, injuriasque arcere si quas forsan reipub. intulerit, jus fasque esto. Blancas, Commentarii, p. 26, cited in 1 Prescott's Ferdinand and Isabella, Int. p. 107. n. 59. provided that permanent and honourable salaries should be established by law for the judges; but *this *295 was not sufficiently precise and definite to guard against all evasion; and the more certain provision in the Constitution of the United States has been wisely followed, in the subsequent constitutions of most of the individual states. In Pennsylvania, the judges of the Supreme Court, and the president judges of the Courts of Common Pleas, by the constitution of that state, are to receive, at stated times, an adequate compensation for their services, "to be fixed by law, and not to be diminished during their continuance of office." The legislature, by act in 1843, repealed the act of 1839, which had increased the salaries of the judges; and they also, by act of 1841, assessed upon the salaries of the judges a tax of two per cent., which the state treasurer retained. The invalidity of the statutes reducing the salaries and assessing a tax thereon, was afterwards adjudged as being unconstitutional, and a peremptory mandamus was awarded to the state treasurer to pay the salary so retained, free of the reduction. and of the taxation. Commonwealth ex relat. Hepburn v. Mann, 5 Watts & Serg. 403. The authority of the constitutional provision, and the void nature of the statutes, were illustrated and enforced in the opinion of the Supreme Court, as given by Mr. Justice Rogers. But the decision of the court has been questioned on the ground that the increased salary was subject to legislative control, under the restriction, however, that the allowance was not to be lessened in respect to the judges, or any of them, below that point at which it stood when they respectively came into office. This last construction is supported by the Federalist, No. 79, and by Mr. Justice Story in his Commentaries, in the remarks on a similar constitutional provision under the United States. The constitution of New-York, as amended in 1821, is an exception to this remark, and it left the judiciary department in a more dependent condition, and under greater disabilities, than it found it, and greater than in any of those states in the Union, or in any of those governments in Europe, whose constitutions had been recently reformed.a a By the constitutions of Massachusetts, Delaware, Maryland, Virginia, Kentucky, North Carolina, South Carolina, Florida, Missouri and Illinois, the judges of the |